Ontario courts not only frown upon unnecessary litigation, but – as a recent case shows – will willingly impose hefty court costs to discourage litigants from proceeding to trial when all the odds are clearly stacked against them.

In Blanchard v. Walker, the parents had a long history of conflict and litigation between them in connection with their 9-year old daughter. Some of these had been resolved through mutual agreement, with the court making a final consent order for joint custody with primary residence to be with the father.

Periodically, the mother had been given temporary sole custody, but overall there was a good deal of professional evidence to demonstrate serious concerns about her ability to meet the child’s needs. This included a report from the Children’s Lawyer, which had made adverse findings about the mother’s parenting skills, had concluded that her own childhood trauma had affected her child-rearing abilities, and had recommended the father have sole custody with limited access to the mother. Children’s Aid had been frequently involved as well.

Nonetheless, the mother went to court to try to obtain sole custody of the child. After a three-day trial, the ruling was 100% in the father’s favour: he was awarded sole custody and was given sole decision-making authority for the child; the mother was granted access, but was prevented from bringing any motions to change the custody/access arrangements until she had received a psychiatric assessment.

In other words, the mother lost rather resoundingly at trial.

The father accordingly asked the court to force the mother to pay for his full trial costs, on the basis that she had acted unreasonably in forcing the matter to go ahead to trial, and that she had acted in bad faith.

The court agreed. It awarded $30,000 in costs against the mother, even though it observed that her ability to pay costs was “very limited, even non-existent”.

In explanation, the court pointed out that it had broad discretion to award costs, and that the traditional purpose of costs was indemnify the successful party for expenses incurred in litigation. However, there were other purposes too: to discourage unreasonable conduct and unnecessary steps, and to ensure that the justice system that works fairly and efficiently. “The court should express disapproval of a litigant who proceeds to trial without adequate evidence to prove her claims,” the court observed.

Here, the evidence against the mother’s position had been overwhelming, but she had unreasonably persisted in taking the matter to trial nonetheless. Since one of the purposes of costs was to “change behaviour”, the court said it needed to issue a “strong message”:

36 Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation:

This particular case should not have gone to trial at all, according to the court, since the evidence against the mother’s position (which included the reports from the Children’s Lawyer) was “overwhelming”:

The mother refused to re-consider her position and the likelihood of success given the over-whelming evidence against her, and insisted on going to trial. Courts must discourage this behaviour. Unless courts discourage this behaviour, it will continue and increase. Orders for costs are one way to discourage this behaviour.

Moreover, the court refused to shield the mother from the consequences of her decisions merely because she could not afford the $30,000 costs award. It pointed out that she was only 29 years old, so had many years in which to pay it off. In light of her own unreasonable behaviour, she was “the author of her own misfortune”, in the court’s view.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at http://www.russellalexander.com/practice/ontario-child-custody-and-access/

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FamilyLLB is written by Russell Alexander, a divorce and family law lawyer based in Ontario, Canada. For nearly twenty years, Russell's firm has helped clients who are going through a separation or divorce. You can find more of Russell's online commentary via Twitter, Google+, LinkedIn, or on the firm's Facebook page.